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Black v. Division of Criminal Investigation

Supreme Court of South Dakota

November 22, 2016

MARK BLACK, Appellant,

          ARGUED OCTOBER 3, 2016


          TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for appellant.

          ROBERT B. ANDERSON of May, Adam, Gerdes & Thompson, LLP Pierre, South Dakota Attorneys for appellee.

          KERN, JUSTICE

         [¶1.] The South Dakota Division of Criminal Investigation (DCI) hired Mark Black as an agent in 2005. Black entered DCI as a veteran law-enforcement officer and quickly distinguished himself as an excellent investigator. However, DCI terminated Black's employment after a series of incidents and disciplinary actions. Black exhausted each level of administrative review, including a hearing with the Civil Service Commission (CSC), which found just cause for his termination. Black appealed that decision to the circuit court, which affirmed. Black appeals. We affirm.


         [¶2.] DCI hired Black as an agent on August 5, 2005. He entered DCI as an experienced law-enforcement officer and quickly became one of DCI's top five agents. Black was the first to receive the newly created Distinguished Service Award in 2009. His success and excellent performance evaluations, however, were accompanied by accounts of emotional instability and lapses in judgment. In his first year on the job, for example, he received high praise on a September 7, 2006 performance evaluation. But the evaluation also said Black needed "to continue to remind himself to maintain his composure and not allow his emotions to take over." Black's evaluations contained similar warnings for the next several years, including one report in 2008 that stated: "Mark on occasion makes poor decisions with regards to his relationship with others. Mark had at times a very difficult 6 month period and became frustrated and disappointed. This became an issue when he sent a resignation email to all agents in the DCI and to the Attorney General." The email incident resulted in a two-day suspension, enrollment in a sixty-day work-improvement plan and counseling. Black successfully completed these programs.

         [¶3.] Problems also arose outside of work. On September 13, 2013, Black commented on the Keloland blog about a SWAT training event. Because his Facebook page showed he was a DCI agent, Black's comment on the Keloland blog appeared to have been made on behalf of DCI. Black commented: "This story is an excellent example of a waste of time by the media. This 'mother' would rather whine to get her face on camera than be a parent and explain to her child, it is the people that protect us practicing to keep us safe from bad guys." DCI disciplined Black with a one-day suspension. Black also made a tape recording in the Brown County courthouse in Aberdeen, portions of which were transcribed by a third party and posted online as a YouTube video. The recording featured a conversation between Black and another DCI agent about an ongoing investigation while they were waiting to question an individual. Black used foul language and made inappropriate statements.

         [¶4.] In 2013, Black went through a contentious divorce with his now ex- wife, Patty Black. In June 2013, he spray painted the phrase "Patty wins" on the boat they jointly owned. The boat was parked in front of the marital home. Black and Patty finalized their divorce in August 2013.

         [¶5.] On February 13, 2014, Patty filed a petition for an ex parte temporary protection order against Black. Patty attached to her petition a handwritten letter from Black containing the following passages:

As for my temper, rage, and razor tongue, I finally figured out how bad I hurt everyone around me. Especially you. I said numerous hateful things . . . .
I know you feel like a victim . . . .
Yes babe I know I punched walls and doors, broke dishes, pictures.
. . . .
I pushed and shoved you as well for that I am sorry too. A[n] honest reflection is that we both mistreated each other . . . .

         The court issued an ex parte temporary order of protection against Black. In light of the allegations in the letter, DCI required Black to surrender his service weapon. That same day, Black's supervisor, Brian Zeeb, began an investigation and placed Black on administrative leave. Because of the allegations of domestic abuse and further examples of Black's lack of emotional control and poor judgment, Zeeb sent a letter to Black on February 21, 2014. The ...

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